Family Law FAQ
Family Law FAQ
In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of any agency involvement, although typically a lawyer is engaged to make sure that all legal requirements are met.
Each type of adoption process has its advantages and disadvantages. Using an agency can be beneficial, for example, because agencies are in the business of locating children and matching them with parents, and they are familiar with all of the requirements, which can be overwhelming to prospective parents and birth parents alike. In international adoptions, especially, it can be advantageous to have someone who knows the ropes intercede on the prospective parents' behalf. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. Some agencies, however, have selection criteria that may screen out certain prospective parents, and waiting times can be very long.
Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know and "select" each other. Adoptive parents may be able to circumvent an agency's selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.
Although historically spousal maintenance was typically awarded to homemaker wives, to be paid by breadwinning husbands, that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete childrearing responsibilities, after which time he or she can be self-sufficient. If one spouse is unable to get a good-paying job, however, due perhaps to health or advanced age, the support award may be permanent.
The amount and duration of alimony depends on several factors, including:
Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary significantly from state to state, but they are all generally based on the parent's incomes and expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. It is important to remember, however, that the guidelines are just that-guidelines-and they are not fixed amounts that must be applied under any and all circumstances. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.
Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including
Judges will often review a financial statement completed by each parent that lists all sources and amounts of income and expense before issuing an order. If any of the listed items changes significantly, either parent may go back to court and ask for an increase or decrease in the amount of child support ordered.
The amount of child support is modifiable under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.
Example: If the payer parent loses his job and asks the custodial parent if he can go a few months without paying support until he has a new job, the custodial parent may voluntarily agree to this modification. If, however, she later decides that she wants to collect the amount of support that went unpaid during that temporary period, the court might support her if it never formally approved the change.
When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been some fairly significant change in circumstances that justifies the change, such as a significant increase in either parent's income through a remarriage or job change or a substantial change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, an increase in the cost of living can warrant an upward modification of child support, but generally these periodic increases are provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
Other anticipated changes that can be provided for in the original child support order include a reduction upon the emancipation of each child, an increase when a child enters college, or any other change based on an event that the parties anticipate and that will have an impact on need or ability to pay.
Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.
Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court in that county can provide information on the proper registration procedure. That court will then move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified downward, and if he or she is successful, the child's home-state court is stuck with the reduced amount. A newer interstate support act called the Uniform Interstate Family Support Act, which has been adopted in some states, does not allow the court in the new home state to modify the original court's support order.
Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will then notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.
Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing, and shelter. This duty usually terminates when the child is emancipated, which generally occurs at the age of eighteen, when the child graduates from high school, when the child enters the military, or when the child marries, but the support obligation can extend beyond that point if the child is unable to support himself or herself and would become a public obligation without familial support. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are strict rules about the amount of financial support provided by the non-custodial parent.
In most instances, parents also have the responsibility to provide necessary medical care for their children. If parents refuse life-saving medical treatment for their children, the state may intervene against the parents' wishes, even if they made their decision on religious grounds.
Parents must also make sure that their children meet school attendance requirements. They do, however, have the right to decide whether the child's education will be in a public school, a private school, or through home schooling.
Stepparents have no legal obligation toward their stepchildren. When they assume the role of the sole provider of the child's support, however, they may be held accountable for providing that support even if the marriage to the child's biological parent ends. Of course, if a stepparent adopts a stepchild, the obligations are the same as they are in any other parent-child relationship.
When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child's best interests. To make that determination, the court considers:
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker. Although this is often the child's mother, any preference for the mother strictly on a gender basis is outmoded.
Although some divorces are very simple and can be handled with a minimum amount of red tape and delay, such as when there is no significant property involved and the couple has no children, most divorces are far more difficult and can take many different courses. The following, however, is a basic outline of the divorce process.
The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.
The parties in a divorce can agree to the division of, or the judge will divide, all marital or community property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, airplanes, snowmobiles, and motorcycles; money; stocks, bonds, and other investments; pensions; and privately owned businesses.
The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties' lawyers can help. Through the legal process known as discovery, the parties' attorneys exchange documents that reveal each party's income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party's financial situation. In addition, each spouse is usually deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.
If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.
In most states, whether they follow a community-property or equitable-distribution scheme, the property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse's separate property. It may, however, be considered as part of the total circumstances in determining a fair allocation of the marital property.
In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division.
Example: If one spouse had a bank account containing $5,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from the same account, the amount in the account at the time of divorce or separation will probably be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $5,000 account deposits only other non-marital money, such as inheritances to him or her alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce.
A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home's maintenance and mortgage payments during their marriage. In some states, this commingling of marital and non-marital assets converts the home to marital property. Perhaps the fairer resolution, however, applied in other states, is that the amount of equity in the home at the time of marriage remains the original owner-spouse's property, but the increase in equity value during the marriage is marital property that belongs to both spouses. The same principles apply in cases involving increases in the value of a family business owned by one spouse before marriage.
Although a legal agreement is not required when a couple decides to separate, working out certain details can preserve harmony, protect rights, and promote predictability. A separation agreement may be most advisable when the parties have very different financial situations, such as when one spouse is the wage-earner and the other is raising the couple's children. A formal separation agreement can help ensure that all family members' needs will be met.
An attorney can make sure that a separation agreement covers all necessary details and complies with applicable law. Although it may seem like a good idea to save money by having one lawyer draft or review the agreement, it is really in each party's best interests to be separately represented, so that each lawyer can draft or review the separation agreement with his or her client's needs in mind. The terms of such agreements will vary, depending on the needs of the particular parties involved, but the following items should be addressed:
A separation agreement does not need to be filed with the court, but can be presented to the court if a dispute arises. As with pre-and post-marital agreements, a separation agreement may be unenforceable if either party failed to make a full disclosure or coerced the other to enter into it. If and when the parties officially file for divorce, the separation agreement's terms may be incorporated into a settlement agreement, but the parties will have an opportunity to change the terms if necessary.
The laws relating to families have changed dramatically since the 1970s as judges and legislators have reexamined and redefined the legal issues involved in divorces, child custody disputes, child support, domestic violence, and other family law matters. Family law has become entangled in national debates over family structure, gender bias, and morality. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in the cases and even the public at large. Despite the changes already made by courts and legislatures, family law remains a contentious and ever-changing area of law, which will continue to evolve as families and society evolve.
Divorce, or dissolution of marriage as some states call it, is no longer fault-based and has become easier to obtain. Whereas not too long ago one spouse had to accuse the other of some grave misdeed, such as adultery, cruelty, alcoholism, or drug addiction, divorce is now available on the basis of incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The division of marital property has also changed in recent years, so that now each spouse is given a more equitable share of the property upon divorce. One change that demonstrates this phenomenon is the recognition of the homemaker spouse's contributions to the accumulation of marital property. For example, whereas once the husband who developed and grew his own business while his "nonworking" wife stayed home would walk away from the marriage with all of the business assets, courts now award a significant portion of the business assets to the wife, who enabled that business growth by taking care of the home and children, and by entertaining business clients and associates. On the other hand, homemaker spouses are not considered as dependent as they once were, and as a result alimony, if awarded at all, is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-sufficient.
Issues like child custody, too, have evolved in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but now fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult, and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting, too, presents heart-wrenching custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children's rights, and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.
Another major change in family law in recent years is the recognition that many family disputes can be resolved more expediently and in a less acrimonious manner than through the traditional litigation process. In divorce and child custody cases in particular, the adversarial process has increased tensions between the parties that do not abate even when the process is complete. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation, which can save time and money and preserve relationships to the extent possible.
Family law lawyers can provide valuable counsel and objective representation in what can be emotionally charged situations. Their experience may focus on a particular area, or may include several or even all of the following family law issues.
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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